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Next move is unclear after Penn State case ruling

By MARK SCOLFORO Associated Press

Posted:
04/10/2013 02:28:35 AM EDT

HARRISBURG, Pa.—For months, the criminal case against three former Penn State administrators accused of covering up abuse complaints about Jerry Sandusky has been in limbo while a judge considered their request to have the case thrown out.

Judge Barry Feudale's ruling Tuesday against Graham Spanier, Gary Schultz and Tim Curley could clear the way for a district judge to finally conduct the preliminary hearing that had once been scheduled for last December.

But Feudale's 16-page opinion and order anticipates that the defendants might want to take up the same issues he rejected before a county judge or a state appeals court.

Feudale ruled he did not have jurisdiction and turned down their motions to throw out the grand jury report backing up the accusations and ruled against two other defense requests.

Feudale said he would not have granted the defendants' request that the charges be thrown out and emphasized that the case was out of his hands once the grand jury issued its report. But the judge did provide an analysis of the defense arguments that, he said, let him to conclude their motions lacked merit.

The three are charged with perjury, obstruction, endangering the welfare of children, failure to properly report suspected abuse and conspiracy.

The defendants had sought to exclude the testimony of Penn State's former general counsel Cynthia Baldwin, based on her actions as she accompanied the men to grand jury appearances in Harrisburg in early 2011.

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The defendants argued that Baldwin's actions violated their right to legal counsel, but Feudale said it "strains credulity to infer that they were somehow deluded or misrepresented by attorney Baldwin."

"In hindsight, perhaps I erred in not asking follow up questions about the role of corporate counsel Baldwin," Feudale wrote. "I regret and perhaps committed error in not asking any follow-up questions, but while I am unaware what the response would have been, I fail to discern how such would persuade me at this stage why presentments should be dismissed."

The attorney general's office and a spokeswoman for Curley's legal team offered no immediate comment. Lawyers for Spanier and Schultz did not immediately return phone messages.

Sandusky, a retired Penn State assistant football coach, was convicted in June of 45 sexual abuse counts. Sandusky, 69, is serving a 30- to 60-year state prison sentence, but maintains his innocence and is pursuing appeals.

Curley is on paid leave to finish out the final year of his contract as the school's athletic director. Schultz has retired as the university's vice president for business and finance. Spanier was forced out as university president the week after the other two and Sandusky were charged, but he remains a tenured faculty member.

The grand jury's report described in detail the behind-the-scenes conversations and decisions being made in late 2010 and in 2011 among the men, as Baldwin met with them after they were subpoenaed as part of the Sandusky investigation.

"Each personally and directly assured her that they knew of no information or documents involving alleged misconduct or inappropriate conduct by Jerry Sandusky," the grand jury wrote.

Baldwin testified to the grand jury that Spanier "specifically requested that she keep him informed of everything regarding (the Sandusky) investigation," the jury wrote.

In November, Curley and Schultz joined together to file one motion to prevent Baldwin from taking the stand against them.

The motion said Baldwin had violated attorney-client privilege by disclosing what they told her about the Sandusky matter, and that lawyers may not testify against their clients. Spanier filed a similar motion and made a similar argument.

Feudale said his review of Baldwin's testimony led him to conclude it was "circumspect and circumscribed. It was not a violation of the lawyer-client privilege, but rather was related to her belated awareness of the commission of alleged criminal acts and was in accordance with her responsibilities as an officer of the court."

Baldwin, who spent two years on the state Supreme Court, appointed by then-Gov. Ed Rendell, is also a former chair of the Penn State Board of Trustees. The university replaced her as general counsel last year.

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